The Update to the Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act (NEPA) could not have come soon enough. When it was first signed into law in 1970, NEPA served as a way for federal agencies to consider the impacts of their actions, helping them to balance a range of interests. Today, NEPA is a massively expensive and time-consuming liability that threatens to derail crucial infrastructure and energy development projects. NEPA, as it currently operates, is the model of an outdated regulation that has been exploited beyond recognition from its original purpose.
Under NEPA, any rule or proposal for infrastructure or development projects that involves federal lands, federal funding, or a federal agency—even if the agency’s role is only to issue a permit—must be accompanied by formal consideration of environmental impacts. “Environmental impacts” refer to a project’s effects on human environment: aesthetic, historic, cultural, economic, social, or health, whether direct, indirect, or cumulative. While the practice of NEPA has changed dramatically with the additions of multiple federal and state regulations over the last half-century, the original broad and vague language has remained nearly unchanged. Section 2, for example, reads:
The purposes of this Act are: To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality.
Section 101 (b) includes similarly ambiguous language:
In order to carry out the policy set forth in this Act, it is the continuing responsibility of the Federal Government to use all practicable means, consist with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may
(1) fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;
(2) assure for all Americans safe, healthful, productive, and aesthetically and culturally pleasing surroundings;
(3) attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences;
(4) preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity, and variety of individual choice;
(5) achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life’s amenities; and
(6) enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.
From Informing to Obstructing
When a project can be easily shown to have no significant effect on human environment, it may skip further NEPA actions by receiving a Categorical Exclusion (CATEX). The vast majority of projects receive this, although it can be challenged in a NEPA lawsuit. When a CATEX is not issued, an agency must undergo an estimation of the project’s environmental impact through an Environmental Assessment (EA). An EA includes a written description of the need for a proposal, alternatives, the environmental impacts of the proposed action and alternative, and a listing of agencies and persons consulted. If the impacts of the project are judged to be significant, an agency must then complete an Environmental Impact Statement (EIS). After a public commenting period of at least 45 days, an EIS is drafted that: rigorously details how the project will affect the environment; addresses comments from the public; and lists all possible alternatives that could lessen its environmental impact, explaining why these alternatives were not taken. This is followed by a minimum 30-day waiting period and then a Record of Decision, describing the agency’s decision, the alternatives the agency considered, and the agency’s plans for mitigation and monitoring, if necessary.
According to the Government Accountability Office, EISs of “even large complex energy projects” were expected to take about 12 months in 1981. Today, the initial EA alone takes an average of 13 months; the EIS averages 4.6 years. In Two Years Not Ten Years: Redesigning Infrastructure Approvals, Common Good reports that while early EISs were simple 10-page disclosures of major impacts, today they seek to be litigation-proof through dense analyses that often run a thousand pages or more. Environmental reviews for raising the roadway of the Bayonne Bridge, one of the four bridges connecting New Jersey and Staten Island, generated about 20,000 pages and cost over $2 million. This includes $600,000 for a historical survey of surrounding buildings that are unaffected by the change and extensive traffic impact studies, even though raising an existing bridge will not affect traffic. The permitting process took five years to be completed – and that’s with it being fast-tracked. For the dredging of Georgia’s Savannah Harbor, the EIS alone took 14 years.
An Activist’s Best Friend
Despite the enormous amount of time and energy spent by the U.S. Coast Guard to account for the possible environmental impact of raising the Bayonne Bridge by 64 feet and fulfill all its NEPA obligations, it was still the subject of litigation by environmental groups. These groups alleged that in issuing a permit for the raised roadway, the Coast Guard failed to analyze the “adverse environmental and public health impacts” that will accompany increased port traffic. Raising the bridge will allow larger ships to pass through, which, despite being more energy efficient relative to their cargo, will raise the levels of air pollution in the area and increase overall traffic.
By suing under NEPA, these environmental groups do not need to present evidence that the project will be overly costly to the environment or induce any legal concerns. They simply point to areas wherein, in the opinion of the environmental groups, agencies did not sufficiently consider all of a project’s environmental impacts or all possible alternatives. In the case of the Bayonne Bridge, environmental groups claimed that certain impacts of the project were not sufficiently covered in the 20,000 pages of environmental review and thus petitioned a federal judge to order an immediate halt to the raised roadway.
Environmental groups stand to gain greatly in these lawsuits as their in-house legal staffs are reimbursed handsomely under the Equal Access to Justice Act whenever they win. But even when the groups know that their lawsuits are groundless, the lawsuits are useful in that their mere existence causes delays and uncertainty—factors that can be death sentences for large projects. With a six-year statute of limitations, NEPA lawsuits are a constant threat, prompting at least one pre-emptive strike by a project proponent. Though lawsuits under NEPA claim to seek redress through repairs and additions to environmental reviews, the ultimate goal of environmental groups is to cause enough headaches and uncertainty through litigation to compel defendants or their investors to scrap the projects entirely. At the very least, impatient agencies may give environmental groups monetary payments and other concessions in a hasty settlement.
A Swiss Army Tool
NEPA has proved to be so easy and rewarding to exploit that its abusers are no longer solely environmental groups. While the economic infeasibility of the proposed wind farm in Nantucket Sound—the Cape Wind project—seemed to only invite further government loans, the ultimate downfall of this NRDC, Greenpeace, and Sierra Club-backed project came from their own best friend, NEPA. Acquiring all of the NEPA-required government permits and sign-offs alone took over a decade, but what really killed the project was “more than a dozen lawsuits, citing everything from potential disruption of whale and bird migrations to interference with airplane and shipping traffic, the wrecking of commercial fishing grounds and the desecration of sacred Native American sites.” The combined burden of regulation and litigation for Cape Wind cost at least $65 million as of 2013, and as of late 2017 the project was officially abandoned. Perhaps having learned lessons from Cape Wind, the Bureau of Ocean Energy Management pre-emptively created an encyclopedic environmental assessment of the consequences of simply inviting proposals for the development of utility-scale wind farms off the coast of New York.
The extent to which Cape Wind opponents were genuinely concerned about the environmental impact of offshore wind farms is uncertain. This appraisal seems a bit easier when judging the lawsuit brought by the Brady Campaign To Prevent Gun Violence against a rule change by the Department of Interior (the first of two NEPA lawsuits against the action). In 2008, the National Park Service and the Fish and Wildlife Service revised the rules on the carrying of firearms in national parks: whereas previously no firearms could be brought into national parks unless they were unloaded and stored, the rule change would allow the concealed carry of firearms when consistent with state and local law. The agencies determined that the rule change was subject to a Categorical Exclusion from NEPA. This prompted a lawsuit by the Brady Campaign: “The groups argue that the rule is unlawful because the Department of the Interior did not conduct an analysis of the rule’s environmental effects, as required by the National Environmental Policy Act, including the effects of the rule on threatened and endangered species.” As compelling as this environmental challenge was, Daniel Vice, Senior Attorney for the Brady’s Legal Action Project, was open to exploring other avenues for challenging gun rights in national parks as well, explaining that his group was “looking at all options.” A federal judge sided with the Brady Campaign, halting the rule until it was mandated through legislation signed into law by President Obama.
An even more egregious case of NEPA abuse comes from a lawsuit against the Department of Homeland Security titled Whitewater Draw Natural Resource Conservation District v. Johnson. The lawsuit argues that any action by DHS that has the result of increasing the population of the U.S.—be it deferring deportation of certain classes of undocumented immigrants, ending the practice of worksite raids by ICE, or even giving those on student visas a one-year work visa—should be subject to environmental review. Its dubious argument rests on the proposition that “since Americans have among the highest carbon footprints, allowing immigrants into the US will increase GHG emissions and climate change.” These concerns about global carbon emissions are raised by the lawyers at the Immigration Reform Law Institute (IRLI), the legal arm of the anti-immigration group Federation for American Immigration Reform (FAIR).
It’s easy enough to dismiss the exploitation of NEPA by groups like IRLI – in other cases they have attempted to use laws like FOIA and RICO for their anti-immigration ends. But their NEPA claim should not be laughed off; the original language of NEPA explicitly considers population growth’s impact on the environment, reflecting neo-Malthusian attitudes found in one of the most influential books of the time, Paul Ehrlich’s Population Bomb. All that IRLI would need to do is successfully convince a judge that population growth could potentially have moderate environmental impacts. This would force DHS to make EAs and possibly even EISs for every minor change to its immigration policy, allowing groups like IRLI to sue under NEPA for each one of those actions. In its current state, NEPA threatens to paralyze any government-related activities unscrupulous activists dislike.
NEPA reform is desperately needed. Decades ago other developed nations took the US as an example and made their own versions of NEPA. Yet since that time the US has seen the delays for an EA and EIS alone swell up to nearly 6 years and a sharp increase in debilitating NEPA litigation. Meanwhile, other developed nations such as Germany and Canada complete their environmental reviews within 2 years, with shorter windows for litigation and jurisdiction limited to legal violations, not policy decisions. To prevent further abuses, NEPA reform must focus on untangling the web of NEPA responsibilities and making one agency responsible for decision-making, limiting the scope of environmental reviews and mandating timeliness, and limiting the statute of limitations and jurisdiction of NEPA lawsuits.
Get Plugged In on NEPA
IER policy analyst, and author of this article, Hunter Pearl sat down with the team from the Plugged In podcast to explore this topic further.